What Will It Take to Stop File Sharing?

It’s becoming increasingly clear to me that vigorous prosecution of the war on file sharing will lead to some deeply illiberal results. And our good friends at the Progress and Freedom Foundation’s Center for Digital Property periodically write things that confirm the point. Former PFFer Patrick Ross, for example, has compared the war on file sharing to America’s “lax” approach to drug law enforcement. And last year Jim DeLong made the argument that stopping file sharing will require copyright laws so draconian that they will make today’s laws, including the DMCA and lawsuits against 12-year-olds, look “ridiculously permissive.”

PFF’s new copyright guru, Tom Sydnor, seems to be equally enthusiastic about using ever-more-draconian legal penalties and restrictions on civil liberties in order to back up his vision of copyright. His latest target is online anonymity, as he argues that Boston University is guilty of “incompetence” for allowing anonymous communications on its network:

For those seeking to enforce federal laws or rights other than copyrights, this order is all bad news. London-Sire suggests that BU has made its campus network into a de-facto safe harbor for anyone using the Internet to commit any crime. It would seem that terrorists, pedophiles, phishing-scheme operators, hackers, identity thieves, and copyright pirates who can access the Internet through BU’s network now have a get-out-of-jail-free card–a judicial decision holding that any identifying data provided by BU is too hopelessly unreliable to support so much as the filing of a civil lawsuit.

What’s amazing about this argument is that it proves way, way too much: it applies to any network provider that allows customers to communicate without identifying themselves first. So, for example, the Panera down the street from me offers anonymous, free WiFi access. Terrorists, pedophiles, phishing-scheme operators, hackers, identity thieves, and copyright pirates can walk into Panera, commit a variety of crimes, and walk out, and in all likelihood Panera won’t be able to provide the police with any useful information about the culprit. (Panera might have logs showing the user’s MAC address, but these are not easy to match to an individual, and they can be spoofed anyway)
The same argument can be made about thousands of coffee shops, hotels, public libraries, and the millions of people with open WiFi networks. If we’re going to hold ISPs liable for the actions of their anonymous users, the practical result will be dramatically fewer ISPs willing to take that risk. Say goodbye to anonymous wireless access in all of those places, because businesses just can’t take the risk of being held liable for child pornography.

There are two problems with this. First, anonymous speech is an important right protected by the First Amendment, and we should be concerned about laws that make it dramatically more difficult for people to exercise this right. Second, this kind of crack-down won’t actually work. The Internet is just too big to pro-actively keep criminals off of it. People with a strong interest in avoiding getting caught will still find untraceable ways to access the Internet (such as tunneling through an offshore proxy server), while law-abiding users will find it a much bigger hassle to check their email.

What I find most striking about Tom’s post is that advocates of copyright maximalism are becoming increasingly candid about the tensions between their vision of copyright law and traditional civil liberties like privacy and due process of law. Patrick is right that the war on file sharing is like the war on drugs: there’s just no way to stop it without shredding our civil liberties in the process. Personally, I think our civil liberties are more important, and I’ve suggested changes to copyright law that would return it to its traditional focus on commercial activity. Tom seems to be on the other side of the divide, and while I don’t agree with him, I have to give him credit for being candid about the costs of his preferred policy.